Syph wrote:Thank you for your contribution to the thread, Wellsy. I've learned a lot from your posts.
Hope it's not too verbose and fairly comprehensible though, so as not to be a painful read.
You are right. Alcohol is a factor is a lot of consensual sex but it is also a factor in coerced sex as well. Imagine a situation where a person declines an offer of sex, is given alcohol by the proposer and then has sex with them. Such scenario is uncomfortable as it's in that grey area in normal circumstances but rape where the standard is affirmative consent.
Agreed, it is one of the most common means for coercive sex.
Though I imagine to ease peoples' minds would have to get into a messy area of discerning what may be wants true want of sex but merely uninhibited from someone whose mentally messed up and can't give valid consent. I think when it gets to these grey areas, the judgement would often be presumed about how predatory or coercive it was. To which I imagine the law would judge harshly those that ignore the drunkardness of their partner and attempt to use a liberal excuse of not knowing, or being drunk which would be a weak defense if the emphasis was that the onus is on the individual to know with reasonable belief that they could get and did have someones consent. http://www.trinitinture.com/documents/wallerstein.pdf
However, protecting the positive dimension of the sexual autonomy of these women comes at the price of not protecting the negative dimension of other women who chose to get drunk without such intention—just because the wanted to Wertheimer argues that because the disinhibiting effects of alcohol are widely understood, a permissive approach should not be regarded as introducing predatory behaviour in which ‘A takes advantage of B’s ignorance’. 65 But this is a misrepresentation. The issue is not one of ignorance, but of vulnerability. Predatory behaviour is a behaviour of taking advantage of a person found in a vulnerable position. Women who get drunk become vulnerable even if they get into this position consciously. When men take advantage of such a situation, they act in a predatory manner, and, therefore, when the law is willing to legitimise such behaviour (by acknowledging a drunken consent as valid consent), the law legitimises predatory behaviour. This is a question of getting the balance between the positive and negative aspect of sexual autonomy right. As a sole public policy consideration, it is not weighty enough to tilt the balance and overcome the problem of lack of capacity to consent, especially when accepting a less restrictive approach (which does not require pre-intoxication consent) comes at the expense of women who are being harmed and view themselves as victims of rape (and are recognised as such as a matter of normative fact).
Don't actually have to show great detail here, because I think this is getting into the sort of debates one would have with law. Personally I don't think I'm familiar enough to draw the finer details that reckon would make for the best legal policy. But I do side with the sense that people in a lot of cases wouldn't be victims of the justice system being over bearing necessarily as much as the justice sytem changes to punish those that acted on those who arguably were in a vulnerable state. To which a lack of knowledge, true or not, is no defense and I would think quite a dubious defense that I wonder what one might argue to give it some weight.
I agree that the problem is systemic, but change in such institutions is painfully slow and the scale of sexual crimes is huge. There is no easy answer and in an ideal world, rapid change could be enacted to cultural and justice attitudes to make our society one that victims feel comfortable to come forward.
Indeed it's quite slow, I think the affirmative consent thing can play a positive role in protecting persons like in the quote above, so exceptionally drunk persons. Though when I say a change in law isn't needed, it's because I think we can readily interpret that the drunk woman from the Wallersteinpaper was raped under current laws, rather it was faulty logic stemming from fear that biased the case. Affirmative consent could indeed play a role in challenging the normative sense of sexual relations.
It is my understanding that the initiator of the sexual encounter would be held culpable in sex-positive circles. I agree that no-one should be punished in this case if there was no evidence of predatory behaviour.
Indeed, if a person was drunk and acted upon another drunk person, it could still be rape. But that is assuming that it's not playing out in the asserted ideal of affirmative consent, with mutual agency to have sex. It just happens both of their consents are invalid due to intoxication, there's no one to charge with rape in that, unless one wants to charge both which seems problematic.
Affirmative consent is merely a mechanism by which two potential sexual partners express enthusiasm for a sexual act but respect the other when they show signs of discomfort. Such consent can be non-verbal (i.e. mutual touching) or verbal in the form of asking for consent etc.
I do think we should encourage sexual verbal communication to avoid mishaps. I'm not suggesting asking every stage of the encounter but being playful with it such as stating intent and appreciating the response. This makes everything so much clearer rather than winging it.
Agreed, should be encouraged, if a person can't communicate for sex, then I don't think they're ready for sex. Because they're missing out on all the best bits of saying "FUCK ME" and things like that and really getting at the other physically. Which I say to stand in contrast to the hyberbolic characterization of affirmative consent being one of signed contracts and monotone statements and questions for each proceeding sexual act.
Because another example that I think isn't currently protected under law without changing it to affirmative consent, is I've seen someone get off where it was actually impossible by the legal standards to convict them. When they were having consensual sex with their girlfriend but they forced her to do anal, by doing it without her consent.
I personally think the affirmative consent standard is most logical on account that it actually presents persons as not having an enduring state of consent until revoked. But puts focus on consent not being presumed until reasonably believed to be acquired.
Which makes perfect sense until persons get uneasy about their sex lives and identify with the possiblity of being convicted more so than protected. It follows teh same logic in that it's not okay for a doctor to do certain things without your expressed consent, nor is it okay to take someone elses property under the premise that it was simply okay and you'd get their consent for it later. Because without consent, it would be stealing in that scenario.
This is really convincing, thanks. How would this change be enacted? Education of law enforcement personnel?
Geez, that's a hard questino off the top of me head.
Questionable if there is effective education, I also think that for special divisions that work on sex crimes, they're generally on point. It's just a lot of the average police are nuffies, I suppose an effective means would be including women in the police force. Though we find that's hard because police like the army are all about machismo and sexually harassing their own officers.
Suppose for long term when peopel bring up sex ed they should emphasize sex ed with gender and power dynamics in th eeducation since that's what's lacking in peoples understanding which undermines their capacity to nvagite and negotiate things effectively nor acknowledge how things play out.
Already know kids who have such a sex education perform better in reduce rates of STDs and such. But it's an important means of consiousness on gender relations that kids may not be informed about, which is why it's a struggle against wowsers and traditionalists who'll cry cultural marxism for informing their kids.
It's hard for me to be discrete because there's always thing that can change and paly a part. Like working mothers who enjoy working tend to raise daughters who feel like they can pursue a career and boys who more likely to participate in doing household chores. Which may seem distantn but could eb part of diminishing the tradtional gender role identification which ma ymake them better able to question social relations and step away from some of the stereotypes around sex.
Perhaps I was unclear in my analogy, the driver (drunk or otherwise) initiating sex and the potential passenger answering the offer affirmatively or negatively.
To the part you quoted, it wasn't a characterization of your analogies. Other sections were, but that was more a reference to what I've seen people written in the past, where I argued that a vicitm can't be culpable of a crime and that they're confused about what responsbility they thought the victim had.
Within the BDSM community, one partner is often a sexual object for the other to use as they please. However, this has two caveats:
The explicit consent is present in these sexual encounters and a mutual respect and trust is required before engaging in these acts.
- Two active participants discuss their kinks and draw up limits to the sexual activity before any sex has taken place.
- The "top" is responsible for the "bottom" and must check in to see if they are okay if they are worried and stop play immediately if the "safe word" is utter by the "bottom"
Good example of someone being passive but consenting.
This is where I think the Wallerstein paper in discussing intoxication makes a point about agreement to sex prior to being drunk. Which wouldn't be a magic bullet, but it does help support the sense that sex was wanted, though would have to explore whether was still wanted at that moment.
[img]A few ideas:
- An explicit "yes" in the absence of coercion.
- An implicit yes in terms of mutual touching after one partner initiates.
- Respecting "no" or discomfort through body language and checking in.
I can agree with that in as general and vague as we can be without trying to debate like lawyers since they want specific lines drawn up where things are okay or not, not liking ambiguity.
I think last one is a good point, since it points to the ability to revoke consent. That one may reasonably believe to have gotten consent, but if something changes and a person wants to stop and one keeps going, then they are assaulting them. Though in this case, the onus is on the person who wants it to stop to effectively communicate this verbally or non-verbally. To which would then have to debate to what extent was it effectively communciated and thus consent clearly revoked and was it reasonable for the other to have been aware of what was communciated.
The burden of proof in a trial should rest on the perpetrator to prove enthusiastic consent before and during a sexual encounter if the following criteria are met:
The victim filed a contemporaneous police report.
A rape kit was taken.
There is evidence of violence to the victim's genital area consistent with rape.
Not sure if there should be a burden of proof for just this, in that these things aren't enough to conclusively deduce rape occured. Quite often such things can only deduce sexual acts, so if someone said they didn't have sex and then there was evidence of their sperm or what ever, then their story takes a blow. But even when there is signs of violence such as bruising and stuff, people just rely on stereotypes of BDSM and say it was particularly violent but consensual. This has sometimes resulted in BDSM stuff being criminalized so it can't be used as an excuse in sexual crimes. So this isn't firm grounds on deducing rape.
I think to be more specific the person is required, regardless of affirmative consent or not to defend themselves from the idea that they raped someone. So if sexual encounter can be proved, they might then go well it was consensual. Then the prosecution has to show convincingly why this not likely the case to which the defense might just try and attack that evidence, but it may also take the route of proving that it was consensual.
This I think would be similar to an affirmative defense in which it seems unlawful until they show otherwise that they infact did have lawful consensual sexual encounter. The problem though is that the prosecution needs to first convincingly argue that rape did occur, without that, there's no need for them to prove anything. https://en.wikipedia.org/wiki/Affirmative_defense
Might have to come back tot his since don't have an explicit sense of burden of rpoof but am concern might be taking the concept to a dangerous level or it needs to be cleared up to what extent it is expected to perform. Since I think people would interpret this that there's a presumption that they're guilty and they need to prove that they're innocent. But I think more accurately, they need to prove it wasn't rape occurs the moment that a strong case is shown that it might've been rape as opposed to the points above being all that's needed to be convinced a rape occurred.